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DACA Rescinded by Trump Administration: What Employers Need to Know

On September 5, 2017, U.S. Attorney General Jeff Sessions announced that the Deferred Action for Childhood Arrival (DACA) program, which was created by Executive Action in June 2012 will be terminated in six months. To date, DACA has served to provide protection from deportation and employment authorization for approximately 800,000 individuals brought to the United States as children who otherwise lack legal status in this country. Facing a potential legal challenge from several states over the program, the administration chose to phase out the program, permitting some recipients to seek renewals of employment authorization for a limited period of time.

Below are points for employers to consider regarding any DACA employees who have expiring Employment Authorization Documents (EAD).

The U.S. Department of Homeland Security (DHS) will continue to process properly filed pending DACA initial requests and associated applications for employment authorization that have been accepted by U.S. Citizenship and Immigration Services (USCIS) as of September 5, 2017.

DHS will reject all new DACA requests and associated applications for employment authorization filed after September 5, 2017.

DHS will continue to process and adjudicate properly filed DACA renewal requests and associated applications for EAD that will expire before March 5, 2018. Under a separately issued USCIS memorandum any application for a DACA and EAD renewal for these particular applicants must be accepted by USCIS on or before October 5, 2017.

DHS will not approve any new Form I-131 Applications for Travel Document (advance parole) based on DACA but it will honor the validity period for previously approved Forms I-131- Applications for Travel Document.

DHS will administratively close all pending Forms I-131 Applications for Travel document filed under DACA and will refund all associated fees.

DACA applicants have been applying on an individual basis, and on different dates since inception of the program in June 2012. Accordingly, the two-year grant of DACA status is a "rolling status," and therefore those applicants whose status expires prior to March 5, 2018 will be permitted to extend their status. Those applicants with status expiring after March 5, 2018 will not be permitted to renew their status or employment authorization documents.

Much opposition to the termination of the DACA program has been expressed by business and civic leaders, the academic community, religious organizations and well-known individuals and politicians. President Trump has expressed the desire that congressional action resolve the DACA issue and stated that he would again consider DACA should Congress not resolve the issue within the six month time frame.

Following the rescission of DACA, the states suing to end the DACA program in federal court withdrew their lawsuits; however, other states, including New York and 14 other states have filed suit to preserve President Obama's 2012 Executive Order creating the DACA program.

U.S. employers may continue to employ DACA recipients with valid Employment Authorization Documents. Once the EAD expires, it will be unlawful for employers to continue employing DACA recipients, and therefore their employment should be terminated.

However, employers may not currently terminate DACA employees on the basis that their EAD might be expiring at a future date and cannot be extended. For those DACA applicants whose EAD expires within the next six months, (before March 5, 2018), applications for EAD renewal should be submitted as soon as possible. If Congress does not take legislative action to protect DACA applicants, the employment of these individuals after March 5, 2018 will be considered unlawful.